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Polluter Pays Principal Set to Reach Biotech Industry

New global agreement would hold corporations accountable for environmental impacts of modified organisms

Beginning in 1998, biotech titan Monsanto sued Canadian canola farmer Percy Schmeiser for $400,000 after some of the corporation’s patented genetically modified seeds blew onto Schmeiser’s farm and sprouted there without his knowledge. But according to an international agreement likely to be adopted later this week, Monsanto could soon be the one paying for damage to biological diversity caused by runaway GM seeds.

The agreement would be part of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, whose 160 Parties have gathered in Nagoya, Japan this week for their fifth meeting, called MOP 5. The draft document up for approval at that meeting states that if living modified organisms (LMOs) cause damage to biodiversity, the entities in control of them (such as the company that developed or imported the organism) would be required to evaluate the damage and respond appropriately. If they fail to do so, a government-appointed "competent authority" would be allowed to step in and clean up the mess, then send the responsible company a bill.

The Cartagena Protocol was created in 2000 to deal with the unique threats that modern biotechnology poses to biodiversity (the United States and Canada, both major LMO exporters, have not joined). It regulates the international trade of LMOs, and was also supposed to address the question of what to do if LMOs do cause harm to biodiversity (LMOs include the same organisms as GMOs, such as herbicide-proof cotton seeds, exotic enzymes, and glow-in-the-dark rabbits, but exclude things that aren’t alive like frozen GM salmon steaks and cotton t-shirts). The issue of liability and redress proved so contentious, however, that negotiations have dragged on for nearly six years.

In the wee hours of Monday morning, at a working group meeting that preceded MOP 5, they finally appear to have come to an end. At the opening session of the main conference UN officials and delegates hailed the long-awaited document, called the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (.pdf, ~275k). But while it would represent a first step towards holding biotech developers responsible for the effect their creations have on the natural world, NGOs involved in the negotiations say the agreement is far from ideal.

Compromised to Death?

"The draft is very different from what many developing countries wanted. The negotiations nearly collapsed many times, and what we have now is a delicate compromise," said Lim Li Ching of the Third World Network, an NGO involved in the negotiating process.

"It’s a very limited outcome. We’re disappointed by the limits to scope, and there’s very little money on the table [to help importing countries meet the obligations placed on them]," said Duncan Currie, an international legal advisor for Greenpeace who has been involved in the negotiations for five years.

He said Greenpeace fought hard for a requirement that companies either take out insurance or set up funds so they could pay for damage fully and quickly. The final draft does not mandate this, but does allow Parties to require this type of insurance if they choose to. In other words, Mexico can now say to Monsanto, ‘If you want to sell GM corn in our country, you need to set up a fund to pay for any potential damages first.’

"Without this kind of provision, someone could claim that financial security requirements violate the WTO. Now there is a clear recognition that states may create this requirement," said Currie. But he added that without an international back-up fund to fill in when companies can’t or won’t pay, it’s not clear damages would really get paid.

LMOs on the Loose

Even proving that LMOs caused damage to biodiversity could turn out to be difficult. Although a number of studies have shown that GM crops can, and do, escape their fields and cross with wild relatives, research on how LMOs will impact specific environments where they are being introduced is often lacking.

For instance, Mexico is a center of origin for both corn and cotton, which means contamination by GM versions of these crops could potentially devastate the rich diversity of native varieties crucial for breeding future crops. Yet Francisca Acevedo, a government biologist and member of the Mexican delegation to MOP 5, said that although "we know it’s possible that introgression [of genes from GM corn and cotton] will happen," research on how that would impact biodiversity in Mexico barely exists so far.

Meanwhile, Industry groups say LMOs will benefit biodiversity.

"Plant science technologies … help farmers increase the productivity of existing arable land in use, significantly reducing the need to expand agricultural land, and therefore limiting the loss of biodiversity and natural habitats," reads a May 2010 press release from Croplife International, an industry group involved in the negotiation process whose members include Monsanto, Dow, and Sygenta. Needless to say, those claims - like everything surrounding the liability and redress agreement- are highly contested.

Yet as Ignacio Chapela, a microbiologist at UC Berkeley whose research on the presence of transgenic material in native varieties of Mexican maize itself became a flashpoint for international controversy in the early 2000s, pointed out in a recent phone interview, the whole fight over liability and redress doesn’t even touch a set of even more important questions.

"Dealing with damage doesn’t deal with the question of whether the barn door should be opened. It doesn’t deal with the fact that these things will leave and do what they want once they leave confinement," said Chapela. "Some of these damages are going to be really impossible to quantify. I mean, what is the cost of the oil spill in the Gulf? We don’t know, and many people suspect that there is no money that can pay for that damage. I think damages from genetic pollution can be like that. Just think about a variety of plant that is producing a pharmaceutical or an industrial product. Can we really say that the benefit of transgenics is worth the harm that is going to come out of them?"

Hopefully, those are questions that every delegate to MOP 5 will be thinking about over the coming week.

Winifred BirdWinifred Bird is a freelance journalist and translator focusing on the environment and architecture. From 2005 to 2014 she lived in rural Japan, where she covered the 2011 tsunami, earthquake, and nuclear disaster for publications including the Japan Times, Environmental Health Perspectives, and Yale Environment 360. When she’s not writing she can usually be found in her vegetable garden. She currently lives in the northern Illinois.